Against Feasibility Analysis

61 Pages Posted: 15 Aug 2009 Last revised: 25 Jan 2011

Jonathan S. Masur

University of Chicago - Law School

Eric A. Posner

University of Chicago - Law School

Date Written: August 10, 2009

Abstract

Feasibility analysis, a method of evaluating government regulations, has emerged as the major alternative to cost-benefit analysis. Although regulatory agencies have used feasibility analysis (in some contexts called “technology-based” analysis) longer than cost-benefit analysis, feasibility analysis has received far less attention in the scholarly literature. In recent years, however, critics of cost-benefit analysis have offered feasibility analysis as a superior alternative. We advance the debate by uncovering the analytic structure of feasibility analysis and its normative premises, and then criticizing them. Our account builds on two examples of feasibility analysis, one conducted by OSHA and the other by EPA. We find that feasibility analysis leads to both under- and overregulation, and we conclude that it lacks a normative justification and is unsuitable for government regulation.

Suggested Citation

Masur, Jonathan S. and Posner, Eric A., Against Feasibility Analysis (August 10, 2009). University of Chicago Law Review, Vol. 77, p. 657, 2010; Universty of Chicago Law & Economics, Olin Working Paper No. 480; University of Chicago, Public Law Working Paper No. 274. Available at SSRN: https://ssrn.com/abstract=1452984

Jonathan S. Masur (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773.702.5188 (Phone)

HOME PAGE: http://www.law.uchicago.edu/faculty/masur/

Eric A. Posner

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-0425 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/posner-e/

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